http://www.ubspectrum.com/news/view.

php/849284/Law-school-Dean-Makau-Mutua-
resigns-
Law school Dean Makau Mutua resigns
Dean Mutua faces allegations of lying under oath in federal court
By SARA DINATALE
On September 24, 2014

Law school Dean Makau Mutua has resigned from his position, effective Dec. 19. Mutua said it was the right time
for him to leave his postion and continue to teach because hes accomplished what he set out to do as dean. He is
currently facing allegations of lying in federal court.
Courtesy of UB News Center
Law school Dean Makau Mutua has resigned. The resignation comes amid allegations that he lied in
federal court and in a state administrative proceeding.
The alleged lying under oath stems from a 2011 case filed by Jeffrey Malkan who says the dean
wrongfully terminated his contract as a clinical professor. Malkan had signed a contract in November
2006 that stated he could only be fired for cause in accordance to the law school accreditation
standard. Two months after becoming dean, Mutua terminated the contract.
The suit also alleges that Malkan was denied due process under the 14th Amendment.
Mutua, who has been dean for seven years, will step down officially on Dec. 19, but he will continue
to teach at UB as a SUNY Distinguished Professor and Floyd H. and Hilda L. Hurst Faculty Scholar.
Mutua is a Harvard graduate and a well-known leader in international human rights.
Provost Charles Zukoski sent an email to faculty Monday announcing the resignation. He did not
mention the lawsuit in the email, but focused on Mutuas accomplishments as dean, which include
recruiting 22 new faculty members, offering more experiential learning opportunities for students and
fundraising $23 million.
I decided to step down because it was the right time: A seven-year tenure is twice as long as the
typical tenure for a law dean, and Ive accomplished what I set out to do, Mutua said in a written
statement to The Spectrum.
Faculty and students interviewed by The Spectrum offered tepid to scathing critiques of Mutuas
tenure and many students insist they have never seen Mutua on campus nor interacted with him. In
October 2010, the law school faculty attempted to hold a vote of no confidence in Mutua, but the
attempt was dismissed by then President John B. Simpson and then Provost Satish Tripathi,
according to email correspondence obtained by The Spectrum in 2013.
Like many law schools across the country, UBs law school has been retrenching in recent years and
in March, the school announced its plans to shrink its incoming class from 200-225 students to fewer
than 200 and to reduce its faculty from 48 to 40.
The Malkan case began in 2011 and names both Mutua and law professor Charles Ewing, who
served as head of the law school grievance committee that heard Malkans complaint. The federal
case, in U.S. district court, is now at the stage of considering summary judgment, which involves
whether the case can go forward to trial. The newest development in the case came in August when
Ewing filed a motion to have his case separated from Mutuas. In the motion, Ewings lawyers argue
Ewing was an innocent bystander, who got caught in the disagreements between Malkan and
Mutua.
Therefore, Ewing has asked the court to separate his case from Mutuas to avoid foreseeable spill-
over effect and indelible prejudice, against him in light of the false testimony allegations against
Mutua.
Ewing could not be reached for comment, but on Tuesday Malkan told The Spectrum Ewings
involvement was marginal and that he wasnt responsible for the wrongdoing. Malkan said his
lawyers have put papers in to dismiss [Ewing] from the lawsuit.
Ive been so frustrated for the last couple of years, Malkan said. I couldnt believe Mutua was still
in the deans office with these allegations over his head. Theres no way a dean can function until his
name is cleared.
The motion to separate the trials highlights the significance of the perjury allegations, which stem
from testimony Mutua gave regarding a faculty vote on Malkans promotion to clinical professor at a
Committee on Clinical Promotion and Renewal (CCPR) meeting. Seven faculty members testified
that the vote took place. Mutua said under oath the vote did not take place, rather that it was a vote
to retain Malkan as a director of the Research and Writing program.
Mutua also testified former UB President William Greiner, who was a member of the law school
faculty, spoke at the meeting. UB law faculty members testified Greiner was not at the meeting.
Malkan said that at the time of the 2006 CCPR meeting, Greiner was sick and not regularly attending
faculty meetings. Greiner died in 2009.
When Mutua was asked to produce Malkans promotion dossier an official document a person up
for promotion needs to prepare for the court, the dean said it had disappeared. He said he didnt
know what happened to it and it was missing when he took over the deans office.
Malkan said Tuesday it was an obstruction of evidence.
Its unthinkable that a dean of a law school would commit perjury and subvert the process and
actually produce a miscarriage of justice, Malkan said.
The university said it does not comment on pending litigation.
The Spectrum reached out to numerous law professors and students, most of whom declined to go
on the record about the atmosphere of the law school and the allegations against Mutua.
However, The Spectrum has pieced together a paper trail that indicates discontent, which includes
the October 2010 attempt by three tenured faculty members to hold a meeting to request a vote of
no confidence in Mutua.
Former President John B. Simpson and then Provost Satish Tripathi asked the faculty to attend the
meeting that would be held on Oct. 22, according to emails obtained by The Spectrum in 2013.
Mutua declined the meeting despite receiving a request signed by three members of the faculty in
accordance with faculty bylaws.
On Oct. 25, following a faculty meeting on Oct. 22, Simpson and Tripathi sent an email to the faculty
addressing the meeting regarding Mutua.
Law faculty said they never took a no confidence vote in Mutua, but voted to put the matter on the
agenda again. It triggered a meeting with Tripathi and Simpson, who told the faculty the
administration was not interested in their concerns about the law school leadership, according to
professors in the law school.
UB policy states that deans should be reviewed every five years. Mutua was dean for six and a half
years before a review was initiated, according to emails obtained by The Spectrum.
In February 2014, UB and SUNY Distinguished Professor of Chemistry Frank Bright, who headed
Mutuas review committee, sent an email to the law school faculty saying a five year review of
Mutua was beginning.
Mutua began as interim dean in late 2007 after Nils Olsen stepped down. A press release
announced his appointment as dean in May 2008. Some law school professors question the process
that led to Mutuas appointment because he didnt go through a full and regular search process,
according to law school faculty. Tripathi appointed him after a failed national search. But UB
Spokesman John Della Contrada said, there was nothing out of the ordinary about the search.
The results of Mutuas decanal review, which was completed around May 2014, are confidential,
according to Bright.
However, Provost Zukoski sent out an email to those who participated in Mutuas review on July 1.
The letter outlines the law schools accomplishments under Mutua, including improving the number
of law graduates who pass the bar, improving infrastructure and increasing fundraising efforts.
The letter states that Zukoski discussed the review results with Mutua and alludes to concerns of
faculty members.
Through the decanal review process, Law School faculty and staff have raised issues of concern to
me as provost, Zukoski wrote. These issues have strained relationships within the school and
created tension around leadership and unit cohesion.
The letter does not indicate if the decanal review process had an effect on Mutuas position as dean.
Della Contrada said input by faculty, staff, students and members of the community is a vital part of
the decanal review process.
Malkan is suing for $1.3 million in damages and said he has essentially been blacklisted in his
profession because Mutua not only fired him, but also would not write him a letter of
recommendation.
The university always settles these cases and no one could understand why after the first six
months, Why couldnt they just let you go? Malkan said. I would have just left. Just give me one
semester salary like some little severance pay and a letter of recommendation, like a letter of good
standing, and I could have found another job and I would have been out of here.
Malkan said he views Mutuas resignation as a relief, and said he was surprised Mutua was allowed
to remain dean with lying under oath allegations lingering.
In a university release, Zukoski praised Mutua for what he has accomplished in his time as dean.
He has led the school through a nationally challenging time for legal education, while strengthening
the schools programs and faculty and advancing UBs teaching, research and engagement
missions, Zukoski said.
Tripathi expressed his thanks to Mutua, who has been in the law school since 1996, and
appreciation for his service to the university in the same release, stating the law school is well
positioned to achieve even greater prominence in legal education and scholarship.
James Milles, a law professor who teaches legal ethics at UB, said those accomplishments Zukoski
pointed out in the letter to faculty would not have happened without the hard work of the entire
faculty.
Weve got a solid and dedicated group of faculty and staff without whom all those accomplishments
would not have been done and they will continue to do great things in the future, he said.
Mutua, a native of Kenya, is active in Kenyan politics and writes political columns for Kenyan news
sites. He received a doctor of juridical science degree in 1987 from Harvard Law School, he served
on the Iran tribunal hearing in 2012 and was elected vice president of the American Society of
International Law in 2011.
Mutuas position as dean and the inherent credibility that comes with it has allowed him to serve on
the Erie Canal Harbor Development Corporation and Gov. Andrew Cuomos Moreland Commission,
which was supposed to root out political corruption, but was shut down early.
Sam Benatovich, a second-year law student who has never met the dean in person, said the
allegations Mutua is facing are troubling. He said the law schools program focuses on integrity and
students have to take a class on ethics in the legal profession.
If the allegations prove to be true, Benatovich said, the dean of a law school cant flagrantly
disregard the foundation of our legal system. It sends mixed messages as an educator. Its not just
wrong, but downright repugnant to create the next generation of lawyers while flaunting your lack of
respect for the legal standards.
email: news@ubspectrum.com
This article has updated to clairfy the difference between allegations and charges.

http://www.buffalonews.com/city-region/university-at-buffalo/deep-rift-exposed-as-ub-laws-dean-
resigns-20140927
Deep rift exposed as UB Laws
dean resigns
Faculty foes allege perjury, mismanagement of school

Makau Mutua. Photo by Derek Gee/Buffalo News
By Phil Fairbanks | News Staff Reporter | @PhilFairbanksBN | Google+
on September 27, 2014 - 6:20 PM
Behind the scenes at one of Buffalos oldest and most important legal institutions, there is a
growing rift, an internal family feud fueled by allegations of perjury against its leader, a near
vote of no confidence and an internal review that paints a portrait of a deeply divided
institution.
At the center of the storm is Makau W. Mutua, a Harvard Law graduate, an internationally
known human rights activist, and the dean of the University at Buffalo Law School. Mutua
suddenly gave up that position Monday in the wake of criticism over his leadership, and he
will step down in December to return as a faculty member.
Mutuas seven years as dean appear to have divided the law school, pitting a man known
across the world for human rights activism against many of the schools most distinguished
faculty members.
Its very toxic. Its very sad, one faculty member said of the environment at the law school.
We have a community that feels alienated by the administration and distanced from the
school.
The deans critics, and they are numerous, include some of the schools most highly
regarded faculty members.
They claim Mutuas management style divided the school at a time of great economic
turmoil. Applications and enrollment at UB Law, like at most law schools across the
country, are down dramatically, and the school is going through a downsizing of both faculty
and students.
Critics say Mutua, who came from within the ranks of the faculty, arrived in the deans office
with a divide and rule philosophy that placed a priority on loyalty and penalized critics
while rewarding allies.
But many alumni and donors view his stewardship as a much-needed step forward.
In their eyes, Mutua shook up a moribund faculty, reached out to alums who felt alienated
from the school and succeeded in raising $23 million in private donations. They say the law
schools endowment has nearly doubled since he became dean.
I found it absolutely refreshing, said Daniel C. Oliverio, a well-known Buffalo lawyer,
alumnus and donor, of the deans efforts to reconnect with alumni. I found his outreach
and responsiveness to be extraordinary.
Mutua would not be interviewed for this story. But in a prepared statement, he said the
allegations of perjury and his disagreements with faculty had nothing to do with his decision
to step down.
I decided to leave because it was the right time, he said. A seven-year tenure is twice as
long as the typical tenure for a law dean, and Ive accomplished what I set out to do.
And in a statement announcing Mutuas resignation, UB President Satish K. Tripathi said
the dean left the law school well positioned to achieve even greater prominence in legal
education and scholarship.
Within a university environment, it is expected that faculty, staff and administrators will
have strong and sometimes differing opinions about academic issues, UB said in a separate
statement to The News. Discussion, debate and collaboration are encouraged at a
university and are an important part of academic life.
A lack of confidence
In the halls of the law school, there is a far different view of the man many believe aspires to
high political office in his native Kenya.
Several faculty members spoke to The Buffalo News on the condition they not be identified,
but others, including six of the schools most highly regarded faculty members, talked
openly about their lack of confidence in Mutua. Some are retiring next year.
Simmering beneath the surface for years, their dissatisfaction became public when eight
filed signed statements in support of a law professor who was fired by Mutua six years ago
and subsequently sued the dean in Buffalo federal court.
The suit by Jeffrey Malkan accuses Mutua of lying under oath, not once but twice, about the
firing. The faculty members statements support Malkans account of what happened and
contradict Mutuas side of the story.
If theres one thing we should be teaching our students, its that sense of honesty, trust and
professionalism, said law professor Martha T. McCluskey.
Mutua has denied in court papers the allegations of perjury, but both he and the university
declined to comment on the suit while its pending before U.S. District Judge Richard J.
Arcara and U.S. Magistrate Judge H. Kenneth Schroeder.
In the eyes of some faculty members, Malkans suit is a symptom of a larger problem the
deans mismanagement of the school. They claim Mutua lacks an educational vision and is
more concerned with power and control than with the schools future.
They also claim the dean singled them out because of their perceived disloyalty and that his
actions led to a near vote of no confidence four years ago. The effort was quashed by then-
President John B. Simpson.
Things were already brewing, said Alfred S. Konefsky, a University at Buffalo
Distinguished Professor, of the growing dissent at the school. The senior faculty felt it was
important to go on the record.
The vote never happened. But, a few years later, Mutua again found himself the target of a
scathing critique, this one an internal evaluation done by a group of faculty members led by
chemistry professor Frank V. Bright.
Bright said he could not comment on the review, but Provost Charles F. Zukoski, in a letter
to law school faculty at the time, acknowledged the facultys dissatisfaction with the dean.
These issues have strained relationships within the school and created tension around
leadership and unit cohesion, Zukoski said.
By some accounts, the tension escalated and, in recent months, led to a private meeting
between Zukoski and six female faculty members concerned about Mutuas treatment of
them.
He has a very authoritative style that is arbitrary and capricious, and usually works to his
benefit, said law professor Rebecca R. French.
French would not comment on the meeting, but others confirmed it centered on Mutuas
relationship with female faculty members and, more specifically, a series of actions he took
against them.
More often than not, the actions they point to involve Isabel Marcus and Lynn Mather, two
other law professors. They say Mutua removed Marcus as head of the schools international
programs while she was undergoing chemotherapy treatment for breast cancer.
He tried to force me to resign, said Marcus, who remains on the faculty. I refused and he
fired me.
Faculty members say Mather, former head of the schools highly regarded Baldy Center for
Law & Social Policy, also was targeted by the dean. Colleagues say Mather, who has since
been named a SUNY Distinguished Service Professor, was recruited from Dartmouth
College to head the Baldy Center.
I was totally shocked, Mather said. I was deeply invested in the center and had a lot of
programs planned for the next year.
A red flag
To hear faculty members talk, the growing unhappiness with Mutua is rooted, in part, in his
decision to fire Malkan in 2008.
It was a sign of things to come, they say, and a red flag to anyone, but especially to
untenured faculty members, who might think twice about their allegiance to the dean.
Even more important, perhaps, was what followed, namely Malkans wrongful-termination
suit, accusing Mutua of lying under oath about a faculty vote to promote him.
Theres not the slightest bit of evidence that Mutua did not commit perjury, Malkan told
The News. Hes actually succeeded in carrying out a miscarriage of justice.
At the heart of the suit is a 2006 meeting at which faculty members took up the question of
Malkans promotion from associate clinical professor to full clinical professor. He also was
director of the schools Legal Research and Writing Program.
Faculty members who were there say the vote was close, but Malkans promotion was
approved. They say Simpson, who was then president, confirmed it in a letter to Malkan.
Mutua, who was named interim dean a year later, removed Malkan from his research and
writing post in 2008 and, a few months later, fired him from his clinical professors post as
well.
Malkan responded by filing a complaint with the Public Employee Relations Board PERB
ruled against him and later a civil lawsuit demanding $1.3 million in damages. Supporters
say Malkan has been unable to find work since his firing.
Mutua denies the allegations of perjury and, in court papers, claims there never was a vote
to promote Malkan.
There was only one vote, which was to extend him for another year as director of the
program, Mutua said during a deposition last year.
And you remember this clearly? he was asked.
I remember this very clearly, Mutua answered.
Privately, faculty members say his recollections of the vote are, at best, off base and, at
worst, dishonest.
Charles P. Ewing, former vice dean of the law school and a co-defendant in the suit, would
not comment on the perjury allegations but, as part of the court case, filed a motion to
remove himself from the suit.
In his motion, Ewing says he was often openly and strongly critical of Mutua and his
management of the law school. He also claims he asked Mutua to resign in order to avoid
the vote of no confidence four years ago.
Mutuas credibility is certain to be attacked at trial, and that attack will be built on the
credible testimony and notes of many distinguished law professors, Ewing said in a signed
statement to the court.
Ewing went on to say that the perjury allegations have tainted him, as well, and that fairness
requires he be removed from the suit. Malkan has since dismissed Ewing from the suit.
Ewing would not comment on his motion but, in a brief statement to The News, said his five
years as vice dean, working alongside Mutua, proved frustrating.
I did my best to serve as a buffer and mediator between the faculty and the dean, he said.
As troubled as I and most of my colleagues are about some of the things that have
happened at the law school in recent years, theres not a single one of us who isnt fully
committed to our students and to retaining our well-deserved reputation among lawyers,
judges and legal scholars.
As part of his motion, Ewing included the declarations of eight other professors, most of
whom were at the 2006 meeting. Each of them supports Malkans and Ewings account of
what happened.
Seen as a savior
There was a time when Makau Mutua was viewed as a savior of sorts.
It was 2007, and Law School Dean R. Nils Olson had announced he was stepping down.
When a national search for a new dean failed, the university looked inside and found Mutua,
a respected faculty member and internationally known human rights scholar.
He became dean in early 2008 after a brief stint as interim dean and, by all accounts,
quickly made his mark on the law school.
Makau has re-energized that faculty, said Thomas E. Black Jr., a Dallas lawyer, alumnus
and chairman of the Deans Advisory Council. I think hes added a ton of energy to the
school.
To hear Black talk, Mutua shook up a school that had fallen in national law school rankings,
an issue of great concern to alumni.
He credits the dean with bringing in more than 20 new faculty members and overseeing a
difficult but necessary downsizing. The hope is that a smaller law school this years
incoming class of 145 is down from a high of about 250 a few years ago will result in better
students and, therefore, higher rankings.
Change is a difficult thing, especially to tenured faculty who have been there a long time,
Black said.
Among Mutuas supporters, there is a school of thought on why the senior faculty rose up
against him. They view it as a generational conflict, an old guard versus new guard type of
battle.
Every organization has that, said Oliverio, the Buffalo lawyer and UB Law School alum
and donor. Show me an organization, a business, that doesnt have that.
Even critics acknowledge that Mutua is popular among donors. He is often described as
charming and charismatic, and supporters say he is personally responsible for the success of
the law schools $30 million capital campaign.
To date, hes raised $23 million, and Oliverio says his success is rooted in a desire to reach
out to alumni with deep pockets.
He said Mutua is the first UB Law School dean in his memory to come to the offices of
Hodgson Russ, Oliverios law firm, and ask for the firms input on changes at the school. The
firm has since committed $500,000 to the law school.
Mutuas emphasis on fundraising is no accident. With a decline in both enrollment and state
aid, it has become more and more necessary for UB to raise money privately, and Mutua has
done just that.
I think weve been fortunate to have Dean Mutuas leadership and vision, said Francis M.
Letro, a well-known Buffalo lawyer, alumnus and longtime donor.
More than anything else, Letro credits Mutua with preparing the school for the next
generation of lawyers.
The dean has invested in technology as a way to improve the schools long-distance, global
teaching and in the aging and tired physical plant.
I think Mutua saw that coming, Letro said of the decline in law school enrollments. I also
think hes done a lot of good at the law school to position it for the challenges of a 21st-
century legal education.
A surprise to some
Mutuas resignation surprised a lot of faculty members. They say Tripathi seemed insistent
on keeping Mutua at the helm and, as recently as last week, expressed support for him.
But six days before his resignation, Tripathis boss, SUNY Chancellor Nancy L. Zimpher,
received a letter from several female faculty members, detailing their complaints about
Mutua and their effort to seek help from the administration.
The resignation also came two weeks after The News began asking questions about the rift
at the law school.
UBs statement, which was provided to The News before Mutua resigned, also made a point
of noting the enormous pressures on law schools everywhere and suggested that UB is in a
better position than most to address those pressures.
UB officials are quick to cite Mutuas creation of new academic programs supporting the
schools global aspirations, and his work improving real-life learning opportunities at the
law school.
I am most proud of my work with my colleagues and with university leadership to lead our
great law school through its renaissance, Mutua said. In spite of challenges in the legal
profession, the UB Law School is on a path to overcome them and continue on its present
path of academic excellence.
email: pfairbanks@buffnews.com

http://www.ubspectrum.com/news/view.php/849579/Mutuas-unsettling-tenure-

Mutuas unsettling tenure
Law school deans resignation illuminates need for increased evaluation
and accountability of university leaders
On September 26, 2014
Despite a hasty appointment, dissatisfied faculty and near invisibility on campus, it wasnt until
Makau Mutua faced allegations of lying under oath that his position as dean of UBs law school grew
tenuous.
UB hasnt said, or insinuated, that the law school dean resigned because of the allegations. Mutua
said it was the right time to step down because he accomplished what he set out to as dean. UBs
release lauded the dean as a major fundraiser.
However, The Spectrum finds the timing suspicious. One month after the allegations surfaced in
court case documents, Mutua stepped down.
But Mutuas seven-year tenure calls into question UBs processes of decanal appointment and
reviews at the university.
Mutua became an interim dean in late 2007. Then, after a failed national search, then Provost Satish
Tripathi appointed him dean in May 2008. Law school faculty members questioned the search
process and Mutuas suitability for the position.
Mutuas actions as dean suggest that these faculty members may have been right to critique
Tripathis decision. They also illuminate the problematic lack of evaluation for deans at UB and a
worrisome abundance of oversight surrounding Mutuas tenure.
In October 2010, then President John B. Simpson and Tripathi dismissed the concerns of law school
faculty after they attempted to hold a vote of no confidence in Mutua. According to law school
faculty, Simpson and Tripathi informed them that they were not interested in the facultys concerns
about the dean. Such willful disregard of complaints that at the very least merited investigation is
indicative of an overly lenient attitude surrounding the leadership of UBs academic departments.
Now, almost four years later four years of faculty malcontent and complaints from students that
theyve never even seen Mutua UBs law school, which is already planning to downsize, faces the
unpleasant prospect of a dean facing allegations of lying in federal court.
The allegations stem from a 2011 lawsuit filed by former clinical professor Jeffrey Malkan, who
claimed that Mutua fired him unfairly. Malkan is suing for $1.3 million in damages and insists his
unlawful firing and Mutuas refusal to write him a letter of recommendation left him blacklisted and
unable to find work.
Mutua is alleged to have lied while under oath, after his statements contradicted testimony from
seven other UB law professors. He has also claimed to have lost materials he was required to
submit to the court, in a move that Malkan says is obstruction of evidence.
And yet, after all this after a shaky appointment, long absences from campus, discontent from
professors and legal turmoil six and a half years went by before even the possibility of
accountability arose.
Mutuas five-year review wasnt initiated until February 2014, six and a half years after his
appointment. Mutuas review clearly wasnt a priority to the administration, despite the multitudes of
complaints generated by his questionable behavior. This suggests a serious lack of commitment to
the development and maintenance of quality leadership at the law school.
Even when carried out in a timely manner, five-year decanal reviews are insufficient. Half a decade
passes before deans successes and failures are evaluated and discussed, before problems are
addressed and practices improved.
This should not be standard practice.
A lot can happen in five years students arrive as freshmen and depart as graduates within that
timespan.
This is especially problematic for recently appointed deans, such as Mutua, who could certainly
benefit from more immediate feedback. UBs outlined procedure for review of academic deans
recommends that a preliminary review of new deans after three years, noting a new dean can
benefit markedly from a review during the initial years of his or her appointment.
Somehow, Mutua flew under the radar for more than double that time. In the years that Mutua
worked for the law school without undergoing review, professors were evaluated at least six times.
UB requires that department chairs review with faculty members at least once a year, discussing
student feedback and assessing professors teaching. This procedure is sensible and beneficial to
instructors and students alike. Deans should face a similarly rigorous review process.
Its promising that the Faculty Senate is aware of this issue, and has begun to review its policy.
Deans, like professors, deserve the opportunity to perform their job to the best of their ability, and
feedback is a critical tool. Students and faculty should be able to feel confident that those in the
upmost echelons of their school have all the resources they need and that their dean is the best
person available to be placed in such an esteemed and important position.
When faculty and students complain and it becomes increasingly clear that a dean is not serving UB
sufficiently, its deplorable for administrators to look the other way.

email: editorial@ubspectrum.com